Solving Accident Investigation Problems

Thorough accident investigations can be one of the most valuable exercises that companies undertake, yet too few have policies and programs in place to carry them out.

Jan 29, 2003

Many employers have not established comprehensive accident investigation policies. Even among those who have, many never actually follow-through with in-depth investigations.

An effective investigation program should fulfill legal requirements, discover the significant factors that contributed to each accident and protect the employer from legal problems. You should re-evaluate your accident investigation practices if any of the following situations are allowed to occur:

Accident investigations are not done for all accidents. This deprives the employer of potentially critical information necessary for the prevention of future accidents.

Employees do not believe that investigations will detect fraudulent claims for workers' compensation. If the employer makes it too easy for employees to lie, some will take advantage of the opportunity.

Accident investigations only identify what happened; the underlying causes of the accident are not identified. If the root causes of an accident are not identified, only superficial solutions can be considered.

OSHA-required accident investigations are not done. Most employers have a legal responsibility to do at least some form of accident investigation.

The appropriate confidentiality of investigations is not maintained. The release of some confidential accident information may suggest employer fault that can result in lawsuits against the employer.

Employers subject to OSHA recordkeeping requirements have to conduct accident investigations for all OSHA recordable injuries. The new regulations, which became effective last January, even specify the type of questions that must be asked when doing an investigation. Not all employers are subject to this new regulation. Employers with 10 or fewer employees and certain industries are exempted. The federal recordkeeping regulations and downloadable forms are available at the following Web site: http://www.osha-slc.gov/recordkeepingwww.osha-slc.gov/recordkeeping.

Some states have additional laws that relate to accident investigations. For example, in California, accident investigations are a required part of every employer's "Injury And Illness Prevention Program" (General Industry Safety Order 3203 (a)(5)).

Types of Investigations

An accident investigation policy should be clear, comprehensive, reasonable and followed. The meaning of the term "accident" needs to be clearly defined. What is undoubtedly an accident to a loss control professional may not seem like an accident to others. For example, if a worker drops a hammer from a scaffold and it doesn't cause an injury or any property damage, many people would think that an accident has not occurred. However, the employee will lose some time retrieving the hammer so an adverse event (an accident) has occurred. We can define an "accident" as: "any unplanned event that causes injury, illness, property damage or harmful disruption of the work process."

There are different types of accident investigations. An "incident report" should answer the four basic "W" questions of who, what, where and when. With a minimum of training, the immediate supervisor can relatively easily and quickly complete an incident report. An incident report may later be used as part of the information collected for a more in-depth accident analysis. The OSHA Form 301 is an example of an incident report.

Doing an "accident analysis" involves more time and skill than an incident report because it attempts to answer the more difficult question of why the accident occurred. The why is the all-important fifth "W" question.

Some accidents are so serious that a "professional accident investigation" is needed. An employer should only allow a professional investigator to do an investigation if the seriousness or circumstances of the accident create the potential for litigation. A very high level of knowledge and experience is necessary to adequately prepare for legal contingencies. If legal action is possible, you don't want an amateur investigation. A poor investigation could cause more harm than good.

Circumstances determine the type of investigation. If time, expense and potential litigation were never a problem, it would be desirable to conduct in-depth investigations for all accidents. However, these factors, and OSHA requirements, should not be ignored when developing polices for investigations. The following are the recommended minimum levels of investigation depending on the seriousness of the accident.

Circumstances: An accident causes any of the following: death, loss of consciousness, professional medical treatment beyond first aid, one or more days of lost work beyond the day of injury, or any type of modified work beyond the day of injury.

Procedure:

1. A written "incident report" will be completed (OSHA Form 301).

2. If no litigation is anticipated, an "accident analysis" will also be done.

3. If litigation is anticipated, an attorney will be consulted and an accident analysis conducted only if approved and directed by the attorney.

Circumstances: An accident does not cause any of the following: death, loss of consciousness, professional medical treatment beyond first aid, one or more days of lost work beyond the day of injury, or any type of modified work beyond the day of injury.

Procedure:

1. OSHA recordkeeping requirements do not require that a Form 301 be completed.

2. An accident analysis will be completed if the incident caused property damage, work disruption or had a reasonable chance of causing significant personal injury/illness.

Answer all of the questions on Form 301 truthfully. The Form 301 does not specifically ask why the accident occurred, so do not include the answer to the "why question" on this form.

Instead of filing out a separate 301, it may seem desirable to combine the required questions from the 301 with other insurance or investigation forms. However, if the 301 information is not on a separate form, whatever form does contain the 301 information will have to be handed over if requested by OSHA or the injured employee. To avoid losing the confidentially of information not required by OSHA, a separate Form 301 should be completed.

One person can complete the 301 if he or she can answer both the personnel questions and the questions about what happened. If not, someone in personnel can fill out the personnel questions and someone else can fill out the section on what happened.

Roles

If supervisor loyalty, depth of training, longevity on the job and authority are not high, it is advisable to have the supervisor responsible for only the incident report and not the accident analysis. A supervisor may have a difficult time doing an in-depth accident analysis because:

The immediate supervisor of the injured may be part of the reason why the accident happened. The supervisor may, therefore, be unwilling to identify deficiencies in training, supervision, discipline, etc., for which he or she is responsible.

Due to lack of training, a supervisor may not have the necessary knowledge to do a good in-depth accident analysis.

Even if training is provided, supervisors may not do investigations frequently enough to develop the necessary skills to do good investigations.

Supervisors may not be sufficiently discreet with potentially sensitive information.

Do not have the injured employee fill out reports beyond what is required by law. It is extremely difficult for an employee to be objective about an accident. Few people have the frankness to admit responsibility when things go wrong. Therefore, an employee is unlikely to identify his or her own unsafe behavior. The details of unsafe behavior by employeesthare a necessary part of the puzzle. Even if an employee was completely honest, most line employees lack the training necessary to do a good investigation. In addition, if required to write a report, an employee may actually identify some condition or management practice that shifts responsibility to the employer. A system that provides an opportunity to document employer "wrongdoing" is not a desirable system from a liability standpoint.

Non-management employees also should not conduct an accident analysis or be involved in the review of an accident analysis. If non-management employees are on a safety committee, the accident analysis should not be reviewed at the meeting. Typically, the facts from the incident report would be all that was appropriate for non-management employees to review.

Keep it on Track

Keep the time frame for completion of an incident report reasonably short. However, setting too short a time period for the completion of the accident analysis may result in a rushed job that doesn't get to the bottom of why the accident occurred. A balance is necessary so enough time is allowed to do a good investigation and yet important information is obtained soon enough to prevent further accidents. Consider the following policy:

Immediately after attending to the injured, the accident site and all physical evidence will be appropriately saved or documented so essential evidence is preserved. An incident report will be conducted with 24 hours of the date of the accident. An accident analysis will be completed within one week of the date of the accident unless the circumstances of the accident indicate that a more immediate analysis is necessary. Exception: if an outside professional is going to conduct an accident investigation, an internal accident analysis will not be done.

In addition to a policy and written forms for doing investigations, detailed written instructions are needed. These instructions should include the following: how to fill out the form, how to interview witnesses, how to secure an accident scene, and an explanation of the theory of immediate causes, contributing causes, systems failure, and legal issues.

Written instructions are not enough. Training is necessary if you want good accident reports. Doing a good accident analysis is especially difficult. Without training, even management employees will not be able to fully evaluate all the contributing causes of a typical accident.

Systems Failure

The term "systems failure" includes all the errors that management and its representatives make that are not grossly negligent or "serious and willful" in nature. Systems failures are thus errors, mistakes, or lapses in management control that are not intentionally in violation of some significant legal requirement. Systems failure is not something that is usually going to cause any additional liability beyond normal workers' compensation benefits and OSHA fines. Examples of common systems errors include training was not effectively presented, the rule was not consistently enforced, and the employee was never reinforced for working safely.

Employers are not required to be perfect. Certain errors and lapses are to be expected within the normal course of business. However, some behavior on the part of management is beyond the realm of normal mistakes. "Serious and willful behavior" refers to those acts where management knowingly causes an employee to be exposed to a serious hazard. The following is one example of what would typically be considered serious and willful misconduct: An injury occurred because the employer ordered an employee to do something that exposed the employee to a serious and immediate hazard and the employer knew that this activity was a violation of an OSHA standard.

The root causes and the entire chain of events that led to the occurrence of the accident should be discovered. Many accident investigations end when the employee errors that led to the accident are identified. Corrective action is therefore limited to correcting only the employee's behavior. For example, if the only cause identified was that a safety rule was not followed, the corrective action would be something like the following: The employee has been instructed to follow the safety rule in the future.

A comprehensive accident analysis will discover employee errors and any "systems failures" that may have contributed to the occurrence of the accident. A good accident analysis may identify a more comprehensive solution such as the following: The employee will be instructed to follow the safety rule and the supervisor will be instructed to more frequently monitor employee behavior, reinforce safe performance, and, if necessary, use disciplinary procedures to consistently enforce the rule.

Quality Checks

Even a skilled investigator may let the quality of his or her investigations slip if management has determined that investigations are not important enough to review. Therefore, a knowledgeable person in a position of authority needs to review the investigations to make sure company policy has been followed and that all relevant issues have been adequately addressed. The person who does this review also needs training in order to be able to adequately evaluate the quality of the investigations.

Do not promise that blame will not be determined. Many accident investigation policies state something to the effect that determining blame is not the primary intent of an accident investigation. This can easily be misinterpreted by employees as guaranteeing that they will not be held responsible for mistakes they have made that lead to an accident. In fact, if language about not seeking blame is in a company policy, an employee could challenge any disciplinary procedure that occurred as the result of unsafe behavior being discovered during an investigation. Employees should realize that when a problem occurs, and someone is found to be responsible, management has the right to take whatever steps are appropriate.

Most employees can accept the consequences of their actions if they perceive that investigations are fair and others who have responsibility are also held accountable. Employees will be especially uncooperative if they perceive that investigations are being used as a technique to find a scapegoat. The consequences of an employee's behavior should also be appropriate for the situation. The employer should weigh what the employee has already suffered because of the injury before imposing any additional punishment.

An employee should never be punished for having an injury. Labor laws make it illegal to take punitive action against an employee for having an injury or filing a workers' compensation claim. It should be clear to employees that any punishment received is strictly for the employee's unsafe behavior. To demonstrate that the punishment is really for unsafe behavior, the employer needs to have a clear history of punishing unsafe behavior even when injuries do not occur.

If requested by the injured employee, incident reports required by OSHA recordkeeping regulations must be given to the employee before the end of the next business day. Incident reports must also be provided to OSHA and any representatives of the injured or deceased employee.

Even an accident analysis that was intended to be confidential may, in some circumstances, be subpoenaed and made public. The information contained in the accident analysis can thus be used against the employer and any involved representatives of management. How to protect the confidentiality of an accident investigation is complex, so an attorney should be consulted to determine the exact precautions that should be taken. The following, however, are some general recommendations that apply when the accident has not caused serious permanent injury, death or the suspicion that management may be responsible for "serious and willful misconduct."

A company policy should state that all accident analyses are considered confidential.

An accident analysis should be shared with only a very limited number of people who have a need to know this information.

The accident analysis and the incident report should not be stored together. An accident analysis should also not be stored with other non-confidential information. For example, an accident analysis should not be stored in a general safety file, claims file or any insurance file. If the analysis is not stored in a "confidential way" it will be harder to claim later that the information is really confidential.

Before starting an investigation, the legal consequences of what may be discovered should be considered. If an employer does not reasonably fulfill his or her safety responsibilities, the consequences could be civil fines (OSHA), additional penalties within the workers' compensation system and even criminal penalties. If the employer is found liable beyond the normal workers' compensation benefits, liability insurance will not pay for the monetary penalties.

Don't document just the things that went wrong. Include the positive actions that were taken by management to avoid the accident. This documentation may become important later if the accident analysis becomes public.

An accident analysis should always suggest a practical solution to help prevent the re-occurrence of a similar accident. If no solution is proposed, the analysis is not complete. The solution should also be implemented within a reasonable time frame.

Employers should remember to stick to facts and logic. An accident analysis should not include exaggerations, baseless speculation, logical inconsistencies or anything that goes beyond the facts and reasonable analysis.

Potential Litigation

If the accident is extremely serious or serious and willful misconduct on the part of management is suspected, professional legal advice is recommended.

A professional investigator working under the direction of an attorney should be used to find out the facts and develop the information that may be necessary to defend the employer in court. The information developed from a professional investigation is also especially useful in developing the best solution possible.

The investigation should be done only after an attorney has requested it. The report should be addressed to the attorney and the only copy of the report should be stored by the attorney in his or her personal legal files.

An attorney should advise management about cooperation with outside investigative agencies (OSHA, local law enforcement, etc.) All representatives of management who had any involvement with the accident should also be advised about what their rights and obligations are concerning making statements relating to the accident.

Recognize that regardless of efforts to keep investigations confidential, the facts may still be revealed.

An effective accident investigation program is one of the most important elements of an injury and illness prevention program. A good accident analysis will typically produce valuable information that can be used to prevent future accidents. This conserves valuable human resources, prevents human suffering and ultimately saves everyone money.

Sidebar: Why Accidents Occur

The following are examples of some of the typical reasons why accidents occur. The identification of unsafe conditions and behavior tell you what happened. The discovery of the contributing and root causes typically reveal why the accident occurred. Expect overlap to occur between causes. Keep in mind, additional factors beyond those listed may need to be identified. Use this as a guide to help complete the accident analysis report.

Personal Beliefs And Feelings. Management should attempt to change those personal beliefs that can lead to unsafe behavior.

Employee did not believe accident would occur to them

Employee liked working fast, showing off, being "macho" or pretending to know it all

Employee was unhappy because of personal problems or problems on the job leading to conscious or unconscious decision to work unsafely

Decision To Work Unsafely. This is a consequence of a person's personal beliefs and learning. Through experience, people learn many possible behaviors. They generally choose those behaviors that they perceive will bring them the greatest reward with the least negative consequences. Unfortunately, some employees perceive that it is to their advantage to work unsafely in some situations.

Mismatch Or Overload. A mismatch or overload occurs when the employee's physical and/or mental capacity is not adequate to safely perform the task

Poor physical condition of employee

Fatigue or high stress level

Mentally unfocused or distracted

Task too complex or difficult

Task too boring, repetitive, etc.

Physical environment is stressful (noise, dust, heat, etc.)

Work is physically very demanding

Employee's attitude is hostile, uncooperative, apathetic, etc.

Systems Failure. The term "systems failure" includes all the errors that management and its representatives make that are not grossly negligent or "serious and willful" in nature. These systems failures are errors, mistakes or lapses in management control that allow or contribute to the occurrence of accidents.

Awkward postures or movement as the result of poor tool or workstation design

Excessive heat, cold or noise

Insufficient lighting or ventilation

Unsafe Conditions. Unsafe physical conditions include the general environment, equipment, work facilities and ergonomic interaction between the employee and the job. Unsafe conditions occur as the result of traps and individual behavior that makes the environment unsafe.

About the author: Dan Hartshorn is a loss control consultant with the State Compensation Insurance Fund in Stockton, Calif. He has a master of arts degree in psychology and 22 years of experience in loss control. This article was written independently, and the State Fund assumes no liability in connection with utilization of this information.